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COVID-19 Pandemic: A Force Majeure?

18 Mar COVID-19 Pandemic: A Force Majeure?

Photo by Fusion Medical Animation on Unsplash

On March 11, 2020, the World Health Organization officially characterized COVID-19 as a pandemic – the first one caused by a coronavirus. This outbreak has caused severe disruption to business operations both within Canada and across the world. As businesses struggle to meet production targets and delivery deadlines, some are now looking to the force majeure clauses in their contracts as a potential source of relief.

Are pandemics a listed force majeure event?

Whether the COVID-19 outbreak triggers a particular force majeure clause can vary from contract to contract. Some force majeure clauses contain a lengthy list of qualifying events, whereas others provide only a very short list before adding the common catchall term “acts of God”. Some force majeure clauses may also contain a condition precedent, such as notice being given to the other party or the force majeure being in place for at least a specified duration.

Ideally, the subject clause would have “pandemic”, “disease outbreak”, or a term similarly specific to the current situation explicitly included as a qualifying force majeure. Where this is true, and any stated conditions precedent are met, the current COVID-19 outbreak may be sufficient for invoking your force majeure clause.

Does COVID-19 fall within the definition of an “act of God”?

Unfortunately, we have seen many force majeure clauses that do not specifically include the term “pandemic” as a qualifying event. Nearly all of them, however, include the catchall term “acts of God.”

The question therefore becomes whether the COVID-19 outbreak constitutes an “act of God.”

Existing jurisprudence does not provide us with a definitive answer, but we can find guidance in how the courts have defined “acts of God” in previous decisions. Generally, an “act of God” can be found where the following elements are true:

  1. The event occurred due to natural causes and did not arise from the act of man.
  2. The event is overwhelming and is not an ordinary accidental circumstance.
  3. The event could not reasonably have been anticipated.
  4. The event could not have been prevented or guarded against by any reasonable degree of prudence, care, or diligence.


While it is certainly arguable that the current COVID-19 outbreak meets all the listed elements, please note that the definition of “act of God” for the purposes of a specific contract can also vary depending on the specific wording of the subject force majeure provision.

For example, it will be easier to argue that “act of God” should be broadly interpreted if the list of qualifying events is very short or non-existent, since one could argue that the drafter ought to have intended for “acts of God” to cover a wide range of events that were not specifically mentioned. Conversely, if the list of qualifying events is detailed but includes only weather-related phenomena (such as floods, hurricanes, and tornadoes), it might be more difficult to argue that a disease-related event was ever intended to qualify as a force majeure.

What about the impact of government actions?

Some force majeure clauses may also include “government action”, “acts of civil authorities”, or other terms of a similar meaning as a qualifying event. If this is true of the subject force majeure clause, and government directives (such as travel restrictions or bans on large public gatherings) have hindered the ability of a business to meet its contractual obligations, then that business may also be able to seek relief under the force majeure clause.

Seek legal advice.

This article provides only an overview of whether the COVID-19 outbreak may qualify as a force majeure. As the preceding sections explain, how a specific clause is likely to be interpreted will vary depending on the facts of each case and wording of that particular contract.

Furthermore, the legal test to be applied would require the party seeking relief to prove that:

(i) the COVID-19 outbreak affected its ability to satisfy its contractual obligations to a sufficiently large degree; and
(ii) it took sufficient steps to mitigate the impact of the COVID-19 outbreak.

Please note that this article is not legal advice and no solicitor-client relationship is created between our firm and readers of the contents herein. If you believe you or your business may be entitled to relief under a force majeure provision, please seek the assistance of a qualified legal professional.